Defendant appeals his convictions for two counts of third-degree sexual
abuse, ORS 163.415;(1) one count of furnishing alcohol to a minor, ORS 471.410(2);
and one count of contributing to the sexual delinquency of a minor. ORS 163.435. Those
convictions arose from several incidents in which defendant had sexual relations with,
and furnished alcohol to, the victim. In two assignments of error, defendant challenges
the trial court's admission of the victim's testimony that she was a virgin when she first
had sex with defendant and her testimony that defendant refused to wear a condom during
their sexual encounters. Defendant asserts that the evidence was inadmissible under OEC
403 because its prejudicial effect substantially outweighed its probative value.(2) We
reverse and remand.

According to the state's evidence, the conduct giving rise to defendant's
convictions occurred during the weekend of August 20 through August 22, 2004. At that
time, defendant was 35 years old, and the victim was 17. The victim's eighteenth birthday
was August 29, 2004. On August 20, defendant, the victim, and two other people had
dinner together. After dinner, defendant bought alcoholic beverages, and defendant, the
victim, and the victim's friend, G, spent the evening in the victim's residence drinking
them. The victim testified that she and defendant later went into her bedroom and had
sexual intercourse. G, who was sleeping in the living room, testified that she overheard
them.

The victim testified that she and defendant had sexual intercourse again on
the morning of August 21. Later that day, defendant bought more alcoholic beverages
and, that evening, defendant, the victim, and G once again drank the beverages in the
victim's residence. G testified that she overheard defendant and the victim having sex in
the victim's room later that evening. G left the residence on the morning of August 22.
The victim testified that she and defendant stayed at her residence and that they had
sexual intercourse twice that day. Defendant left the victim's residence that night. The
prosecutor separately asked the victim, with respect to four of the five sexual encounters,
whether defendant refused her request that he wear a condom. In each instance, the
victim answered affirmatively that defendant refused to wear a condom.

Defendant was indicted on five counts of sexual abuse in the third degree,
based on the five acts of sexual intercourse to which the victim testified. At trial,
defendant's theory of the case was that he and the victim had a consensual sexual
relationship and that they did not have sexual relations until she turned 18. Defendant
also argued that, if he had sexual relations with the victim during the alleged weekend, it
was because defendant did not know that the victim was only 17 years old at the time.

Defendant objected on the ground of relevance to the victim's testimony
that she was a virgin before she first had intercourse with him. Defendant did not object
to the evidence based on OEC 403. The trial court overruled defendant's relevance
objection. As noted, the victim subsequently also testified that defendant had refused to
wear a condom during their sexual encounters. Defendant objected to that testimony on
the ground that it was irrelevant under OEC 401 and, alternatively, that its prejudicial
effect substantially outweighed its probative value under OEC 403. The trial court
overruled defendant's objections, explaining as follows:

"Frankly, that--she has a right to explain the circumstances surrounding the
matter, and I don't believe a weighing was necessary regarding the prejudice
vis-a-vis the probative value. It explains * * * her memory. It makes it
more clear to the jury what she remembers what occurred there.

"All very, I think, to the State's view, important stuff. I don't think
that--the issue is whether she had intercourse or not, but the--whether the
condom was used or not really doesn't add a whole lot to that. It just adds
to the circumstances surrounding, so I'm going to--that's the reason I
overruled your objections."

On appeal, defendant does not renew his basic relevance objections to the
challenged evidence under OEC 401. Instead, he argues only that the evidence was
inadmissible under OEC 403. As noted, defendant did not assert before the trial court
that the victim's testimony that she was a virgin before she first had sex with defendant
should be excluded under OEC 403. It follows that defendant's first assignment of error
was not preserved. See State v. Carrillo, 108 Or App 442, 445-46, 816 P2d 654, rev den,
312 Or 527 (1991) (a relevancy objection under OEC 401 does not preserve a claim of
error under OEC 403). Accordingly, we reject it without further discussion.

Defendant did, however, preserve his second assignment of error by
objecting to the victim's testimony that he refused to wear a condom on the ground that it
was inadmissible under OEC 403. Defendant observes that the trial court did not
evaluate the extent to which any probative value that the evidence had outweighed the
danger of unfair prejudice. He argues that, under State v. Mayfield, 302 Or 631, 645, 733
P2d 438 (1987), which sets out a four-step analysis for determining whether evidence
should be excluded under OEC 403, that alone is a ground for reversal and remand for a
new trial. The state concedes that the court did not engage in the analysis that Mayfield
requires. It argues that, nevertheless, reversal and remand are not required because the
admission of the evidence was harmless.

In Mayfield, the Supreme Court held:

"In making this decision under OEC 403, the judge should engage in
four steps. First, the trial judge should assess the proponent's need for the
uncharged misconduct evidence. In other words, the judge should analyze
the quantum of probative value of the evidence and consider the weight or
strength of the evidence. In the second step the trial judge must determine
how prejudicial the evidence is, to what extent the evidence may distract the
jury from the central question whether the defendant committed the charged
crime. The third step is the judicial process of balancing the prosecution's
need for the evidence against the countervailing prejudicial danger of unfair
prejudice, and the fourth step is for the judge to make his or her ruling to
admit all the proponent's evidence, to exclude all the proponent's evidence
or to admit only part of the evidence."

302 Or at 645. The court held that "[t]he judge errs" if he or she fails to exercise
discretion or fails to make a record that reflects the described four-step analysis. Id.

In this case, the record does not show that the trial judge engaged in the four-step analysis
that Mayfield requires. We therefore accept the state's concession that the trial court erred and turn to the question whether that error was harmless. See
State v. Pierce, 189 Or App
387, 391-92, 76 P3d 172 (2003) (accepting a concession of legal error where the record
did not show that the trial court had engaged in the required analysis).

We will affirm a judgment of conviction notwithstanding the erroneous
admission of evidence if there is little likelihood that the admission of the evidence
affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). As the court
explained in Davis, the correct focus of that inquiry "is on the possible influence of the
error on the verdict rendered, not whether this court, sitting as a factfinder, would regard
the evidence of guilt as substantial and compelling." Id. As an initial step, the court
determines the particular evidentiary issue that is subject to harmless error analysis. State v. Cook, 340 Or 530, 544-45, 135 P3d 260 (2006). After identifying the pertinent issue,
the court considers the nature of the erroneously admitted evidence in the context of other
evidence on the same issue. See State v. Gibson, 338 Or 560, 576-77, 113 P3d 423
(2005) (pursuing that inquiry). That consideration involves the assessment of any
differences between the quality of the erroneously admitted evidence and other evidence
admitted on the same issue. Davis, 336 Or at 33-34 (focusing on whether the finder of
fact would have regarded the evidence as duplicative, cumulative, or unhelpful in its
deliberations).

In addition, in determining the possible influence of the error on the verdict,
we consider the importance of the erroneously admitted evidence to a party's theory of the
case. Id. at 34 ("[E]xcluded evidence goes directly to the heart of defendant's factual
theory of the case."); State v. Perkins, 221 Or App 136, 145, 188 P3d 482 (2008)
(declining to find harmlessness where erroneously admitted evidence went "directly to the
heart of [the state's] factual theory of the case"). "If erroneously admitted evidence relates
to a 'central factual issue' to the case, it is more likely to have affected the determination
than if it dealt with a tangential issue." State v. Roller, 201 Or App 166, 173, 118 P3d
804 (2005).

The state reasons thus: A primary issue in the case was whether defendant
had sexual relations with the victim before she turned 18. The state's theory at trial was
that the victim's encounters with defendant occurred during the weekend of August 20
through 22, before her eighteenth birthday. The state proffered the challenged evidence
to bolster the victim's credibility by showing that she accurately recalled the details and
circumstances of her encounters with defendant that weekend. Nevertheless, the state
posits that the jury apparently doubted the victim's testimony, because it convicted
defendant only of the counts involving acts that G's testimony corroborated, and it found
defendant not guilty of the charges involving acts to which only the victim testified. It
follows, the state reasons, that the evidence did not help the state's case and that the error
in admitting it without complying with OEC 403 was harmless.

The difficulty with the state's argument lies in the very nature of the
assessment that OEC 403 requires. The evidence that defendant refused to wear a
condom had little to do with either party's theory of the case. The evidence was, at best,
marginally relevant to the state's proffered purpose of showing that the sexual encounters
occurred before the victim's eighteenth birthday. That is so because, although the victim
may have accurately recalled that defendant refused to wear a condom during their sexual
encounters, that recollection appears to have no bearing on when those encounters
occurred. Ordinarily, the fact that erroneously admitted evidence does not strongly relate
to a central factual issue in the case might support the conclusion that the error was
harmless. Roller, 201 Or App at 173.

However, evidence challenged as unfairly prejudicial under OEC 403
requires a somewhat different analysis. Notwithstanding that the evidence at issue here
had minimal relevance to either party's theory of the case, that evidence nevertheless
could have persuaded the jury that defendant was an irresponsible adult male who
deserved to be punished for his conduct with a much younger female. That impression
could have been reinforced on each of the four occasions that the prosecutor asked the
victim whether defendant had refused to wear a condom during their sexual encounters
and she answered affirmatively.

The possibility that the jury may have had some doubt about the victim's
credibility does not mean that the evidence had no tendency to influence its decision to
convict defendant of two of the five charged offenses. The jury could have been
unsympathetic to the victim and still have believed that defendant was a menace to
society who should be incarcerated because of his penchant for having unprotected sex
with young females. Because a potential effect of the challenged evidence involved
precisely the type of risk that compliance with the requirements of OEC 403 was designed
to ameliorate, we cannot say there is little likelihood that the erroneous admission of the
evidence affected the jury's verdict.

2.OEC 403 provides, "Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay or needless presentation of cumulative
evidence."

3.The verdict forms that the jury returned distinguished among the various counts of
third-degree sexual abuse based on the dates and times of day when the acts allegedly occurred.
Counts 1 and 3, the counts on which guilty verdicts were returned, involved acts occurring on the
"[e]vening of August 20, 2004" and the "[e]vening of August 21, 2004," respectively.